The Doyle Report

Lack of intermediate court disturbing

The Doyle Report

June 16, 2011

West Virginia is one of only a handful of states that lack an intermediate court of appeals. If you lose your case in circuit court, you may request an appeal to the state Supreme Court, but it's up to that court whether or not you get it.

Many people have argued for some time that we need an intermediate appeals court. I have been in that camp. Underlying the debate is the question of whether or not a person should be guaranteed a right to at least one complete "second chance" in court should they lose at the trial court level. I think it's proper that they should.

Opponents of the idea argue that an intermediate court would cost money. Estimates vary from $3 million to $8 million per year, depending on how such a court would be structured. Will there be one three-judge court sitting in Charleston? A five-judge court sitting there? Two separate three- (or five-) judge courts - one for the northern half of the state and one for the southern?

Clearly there would be some expense. But I think the more fundamental question is will the improvement in the justice system be sufficient to justify whatever expense there is?

One proposed alternative to such a court is to require that the state Supreme Court grant a hearing to every appellant. Some of the few states without intermediate appeals courts have such a requirement. The high court has responded to this debate by making it easier to get a hearing without guaranteeing such an outcome. Clearly the system is fairer at the moment but the Supreme Court, having made this rule itself, could change it back anytime.

Another argument against such a court is that "justice would be delayed." That begs the question - justice is only delayed by an appeals process (whether it's one step, two steps or even more) if the original verdict is found to be correct. In cases where that original verdict is found to be incorrect justice is not delayed; it is done.

Much of the support for this idea comes from the West Virginia Chamber of Commerce. The Chamber says an intermediate court would make West Virginia more "pro-business." That argument falls flat with me.

Civil cases often involve one business suing another. If the plaintiff business wins over the defendant business is it an "anti-business" decision? Or is it a "pro-business" decision if the defendant business triumphs over the plaintiff business?

My support for an intermediate appellate court comes primarily from my concern for criminal defendants who were forced to have court-apponted attorneys because they could not afford to pay for their lawyers. This happens in many judicial circuits in our state and often the defendants do not get counsel that I consider adquate.

Some of the judicial circuits in West Virginia (ours is one) have active public defender corporations. I believe the counsel provided criminal defendants by public defenders is generally far superior to that provided by court-appointed lawyers. I would be much less supportive of an intermediate appeals court if all of West Virginia were served by public defenders. But I do not expect this to happen in my lifetime.

While I think having an intermediate court of appeals would help, there are two other reforms I think are far more critical to improving the performance of our court system. We should do away with partisan elections for our judiciary and return to the legislative branch its proper role in funding the courts.

Judges are supposed to be the essence of neutrality. Yet in our state we insist that they declare a fundamental partisanship (party identification) prior to seeking this supposedly non-partisan office. As a now-hackneyed saying goes, "does not compute."

Placing the power of the purse in the hands of the people's elected representatives in the legislative branch is fundamental to the American system of checks and balances. The United States Congress appropriates the money used to run the federal court system and the legislatures of 49 states appropriate the money used for their state court systems.

But in West Virginia the high court marches into the halls of the legislature demanding whatever funds it wishes and the legislature is required to provide them. Why? Because a number of years ago the state Supreme Court discovered that this was the only guarantee of an "independent judiciary."

The United States of America and 49 of her 50 states do not have independent judiciaries? Oy vey!

I'm open to be persuaded that we can guarantee justice short of establishing an intermediate appeals court. But letting the state Supreme Court discipline itself just doesn't get it.